Pub Date : 2021-02-04DOI: 10.1093/OSO/9780198853145.003.0002
A. Simester
This chapter discusses criminal law’s structure and working doctrines, offering some preliminary remarks about how the major legal doctrines relate to the principles identified in the previous chapter. In terms of the basic framework, it is conventional these days for common lawyers to divide up the law of crimes into three rather broad groupings: actus reus (the so-called ‘external’ or ‘physical’ elements of the crime); mens rea (the defendant’s mental state or, sometimes, the lack of it); and defences. The master question for criminal liability then becomes one of concurrence—is there a moment in time at which the actus reus and mens rea requirements of the offence are simultaneously satisfied, and there are no defences available? However, this threefold division is not clean, and the contents of each part are not independent of one another. The chapter presents a rough structural sketch of the criminal law.
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Pub Date : 2021-02-04DOI: 10.1093/oso/9780198853145.003.0012
A. Simester
This chapter looks at the ways in which findings of unreasonableness inform judgements about the culpability of defendants. The chapter suggests that, even without using tracing strategies, it is possible to defend many of the criminal law’s invocations (un)reasonableness in terms of a defendant’s blameworthiness. Sometimes the defendant’s failure to meet an objective standard does reflect a moral vice on her part. The function of the so-called ‘reasonable person’ in this context is really to hold the defendant up to an external standard of moral characteristics. Conversely, if it is to comprise a standard of culpability, the ‘reasonable person’ ought to be personalized to the extent that the defendant’s shortcomings do not disclose moral vices. In particular, and alongside physical limitations, that includes shortcomings of intelligence.
{"title":"Being Unreasonable","authors":"A. Simester","doi":"10.1093/oso/9780198853145.003.0012","DOIUrl":"https://doi.org/10.1093/oso/9780198853145.003.0012","url":null,"abstract":"This chapter looks at the ways in which findings of unreasonableness inform judgements about the culpability of defendants. The chapter suggests that, even without using tracing strategies, it is possible to defend many of the criminal law’s invocations (un)reasonableness in terms of a defendant’s blameworthiness. Sometimes the defendant’s failure to meet an objective standard does reflect a moral vice on her part. The function of the so-called ‘reasonable person’ in this context is really to hold the defendant up to an external standard of moral characteristics. Conversely, if it is to comprise a standard of culpability, the ‘reasonable person’ ought to be personalized to the extent that the defendant’s shortcomings do not disclose moral vices. In particular, and alongside physical limitations, that includes shortcomings of intelligence.","PeriodicalId":405419,"journal":{"name":"Fundamentals of Criminal Law","volume":"12 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-02-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130342674","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-02-04DOI: 10.1093/oso/9780198853145.003.0018
A. Simester
This chapter examines justifications. The common law knows a range of rationale-based defences according to which otherwise pro tanto wrongs may become permitted. By articulating justificatory defences like self-defence and necessity, the legal system adds the interstitial nuance that its prohibitions require. Unlike most other justifications, however, lesser-evils necessity is unconfined by reference to specific contexts, such as protecting oneself from attack or executing an arrest. Its field of application is amorphous and open-ended. The chapter then considers why necessity differs from those other, ‘primary’, justifications. It develops two theses: wrong-dependence and justification-dependence. In wrong-dependence, whether a person’s offence is justified depends on the type of (pro tanto) wrong that offence is. In justification-dependence, whether a person’s offence is wrong (simpliciter) depends on the type of justification that the person has. The chapter argues that cases of lesser-evils necessity are special, in that they are cases of a justified wrong. By contrast, primary justifications such as self-defence do not involve a wrong but only a pro tanto one. The importance of urgency requirements in rationale-based defences is also discussed.
{"title":"Unpacking Justifications","authors":"A. Simester","doi":"10.1093/oso/9780198853145.003.0018","DOIUrl":"https://doi.org/10.1093/oso/9780198853145.003.0018","url":null,"abstract":"This chapter examines justifications. The common law knows a range of rationale-based defences according to which otherwise pro tanto wrongs may become permitted. By articulating justificatory defences like self-defence and necessity, the legal system adds the interstitial nuance that its prohibitions require. Unlike most other justifications, however, lesser-evils necessity is unconfined by reference to specific contexts, such as protecting oneself from attack or executing an arrest. Its field of application is amorphous and open-ended. The chapter then considers why necessity differs from those other, ‘primary’, justifications. It develops two theses: wrong-dependence and justification-dependence. In wrong-dependence, whether a person’s offence is justified depends on the type of (pro tanto) wrong that offence is. In justification-dependence, whether a person’s offence is wrong (simpliciter) depends on the type of justification that the person has. The chapter argues that cases of lesser-evils necessity are special, in that they are cases of a justified wrong. By contrast, primary justifications such as self-defence do not involve a wrong but only a pro tanto one. The importance of urgency requirements in rationale-based defences is also discussed.","PeriodicalId":405419,"journal":{"name":"Fundamentals of Criminal Law","volume":"636 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-02-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132013793","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-02-04DOI: 10.1093/oso/9780198853145.003.0007
A. Simester
This chapter addresses complicity liability. Complicity doctrine is notoriously difficult, both doctrinally and conceptually, in part because its underlying principles are themselves in tension. The pull of judgements about culpability must be reconciled with the demands of criminalization, and with the need protect the public. Frequently, the approach of the courts has been to focus on the defendant’s culpability. The better approach, it is argued, is to distinguish matters of culpability from those of ascriptive responsibility, and to focus also on the latter. Once this is done, it becomes easier to see the centrality of mens rea in ascribing responsibility for another’s acts. Quite apart from helping to show culpability, mens rea requirements can also mediate the constraints of criminalization, helping to balance the ex ante liberties of the accessory against the rights and interests of others; and ensuring those who do otherwise innocent actions have sufficient notice that their conduct is potentially criminal. The chapter closes by distinguishing between two major categories of participation: aiding and abetting, and joint criminal enterprise.
{"title":"Complicity","authors":"A. Simester","doi":"10.1093/oso/9780198853145.003.0007","DOIUrl":"https://doi.org/10.1093/oso/9780198853145.003.0007","url":null,"abstract":"This chapter addresses complicity liability. Complicity doctrine is notoriously difficult, both doctrinally and conceptually, in part because its underlying principles are themselves in tension. The pull of judgements about culpability must be reconciled with the demands of criminalization, and with the need protect the public. Frequently, the approach of the courts has been to focus on the defendant’s culpability. The better approach, it is argued, is to distinguish matters of culpability from those of ascriptive responsibility, and to focus also on the latter. Once this is done, it becomes easier to see the centrality of mens rea in ascribing responsibility for another’s acts. Quite apart from helping to show culpability, mens rea requirements can also mediate the constraints of criminalization, helping to balance the ex ante liberties of the accessory against the rights and interests of others; and ensuring those who do otherwise innocent actions have sufficient notice that their conduct is potentially criminal. The chapter closes by distinguishing between two major categories of participation: aiding and abetting, and joint criminal enterprise.","PeriodicalId":405419,"journal":{"name":"Fundamentals of Criminal Law","volume":"43 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-02-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123119838","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-02-04DOI: 10.1093/oso/9780198853145.003.0005
A. Simester
This chapter focuses on causation. Causation doctrines govern the connection between a person’s behaviour and the consequence elements, if any, of an offence. They articulate the paradigm route by which responsibility for those consequences can be ascribed to the person. The chapter provides an account of causation in the criminal law that points toward some natural-world property that it (in part) rests upon, and which shows how that property is capable of bearing the moral freight that causation doctrines must carry. The account seeks to reconcile the tension between pre- and post-legal notions of causation, finding a place for the law’s morally sensitive causation doctrines. In so doing, it helps to explain what criminal and tortious causation must have in common, and where space exists for their causal doctrines to diverge. Finally, the chapter sets out three major threads of causation: direct causation, indirect causation, and causation via omissions or other non-interventions.
{"title":"Causation","authors":"A. Simester","doi":"10.1093/oso/9780198853145.003.0005","DOIUrl":"https://doi.org/10.1093/oso/9780198853145.003.0005","url":null,"abstract":"This chapter focuses on causation. Causation doctrines govern the connection between a person’s behaviour and the consequence elements, if any, of an offence. They articulate the paradigm route by which responsibility for those consequences can be ascribed to the person. The chapter provides an account of causation in the criminal law that points toward some natural-world property that it (in part) rests upon, and which shows how that property is capable of bearing the moral freight that causation doctrines must carry. The account seeks to reconcile the tension between pre- and post-legal notions of causation, finding a place for the law’s morally sensitive causation doctrines. In so doing, it helps to explain what criminal and tortious causation must have in common, and where space exists for their causal doctrines to diverge. Finally, the chapter sets out three major threads of causation: direct causation, indirect causation, and causation via omissions or other non-interventions.","PeriodicalId":405419,"journal":{"name":"Fundamentals of Criminal Law","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-02-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116623296","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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